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Sunday, January 10, 2016

More on Texas police bodycam opacity

In her Quorum Report story on police bodycam transparency, mentioned here, Eva Ruth Moravec described how the Attorney General's office has been ruling on requests for bodycam footage:

Since the bill became law on Sept. 1, [Attorney General Ken] Paxton has used its criteria for requesting footage in ruling that body camera footage may be withheld in at least eight cases, based on a search of AG rulings.

In each case, the state told cities like Fort Worth, Freeport, Fisco, Lubbock, Pflugerville, DeSoto and College Station that the "requestor did not properly request the body worn camera recordings," so, "it need not be released."

The requestor may try again, the state advised – but in most of the cases, the state added that the request would have been denied anyway under the criminal investigation caveat.

West's office said he is monitoring the law's implementation and could focus next session on issues with open records and transparency.

There are two issues going on here, both of which require legislative resolution:

First, the closed records provisions in the bodycam bill itself were fatally flawed, establishing difficult barriers for requestors to access footage and creating sweeping exceptions for many police interactions. Grits has discussed these problems in depth.

But notice the final comment attributed to the AG: "in most of the cases, the state added that the request would have been denied anyway under the criminal investigation caveat."

That one gets less attention because the damage to transparency wasn't done last session but two decades ago in an episode which most folks - cops and reformers alike - have long forgotten, even if it comes up again and again in police accountability contexts.

In 1996, a case styled Holmes v. Morales - that would be former Harris County DA Johnny Holmes vs. former Texas AG Dan Morales - was decided by the Texas Supreme Court in a way that gutted a quarter century of Texas open records law. In particular, the Texas Supreme Court overturned a longstanding interpretation of the law from the Jim Mattox era to create a much more stifling standard for accessing police records.

The following session in 1997, instead of reinstituting our old standard - which ranked Texas, basically tied with Florida, as the most transparent state in the nation regarding law enforcement records - police unions and their employers combined in a successful campaign to convince the Legislature to codify the bad Texas Supreme Court ruling, permanently closing records which had been de rigeur for reporters and researchers to access throughout my own adult lifetime. (During this period Grits was a professional opposition researcher, so I routinely accessed these records and had a front-row seat for the day-and-night shift in transparency that occurred with this transition.)

As it turned out, this was the episode that convinced Grits, before there was Grits, to first begin going to the Legislature on criminal justice issues. There had been no reformers on the ground to fight closed records provisions in 1997 and so much was lost with that one bad bill, I decided in 1999 that it behooved me to begin showing up, at the time as a volunteer.

All this to say: As legislators consider opacity problems with the new bodycam legislation, there need to be two fixes: 1) the barriers to accessing footage in the new bill should be eliminated and 2) Section 552.108 of the Public Information Act, which is the law enforcement exception, should be amended to codify the Mattox-era interpretation of the old open records act to restore Texas' status as a beacon of transparency on criminal justice which we'd enjoyed nationally since the 1970s. (State Rep. Harold Dutton has filed legislation on this score in years past, but it's never seemed to gain momentum.)

If we're going to take on these transparency issues, let's take on all of them. The bodycam legislation needs to be fixed, but that's hardly the only problem we face in Texas regarding closed police records.

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